Florida is an outlier insofar as allowing capital-case juries to find aggravating circumstances and recommend a death sentence by a simple majority, e.g., 7-5. All 33 other death penalty states require some form of unanimity

January 04, 2011

As reported below by the ABA Journal Law News, the ABA is urging the Supreme Court to take up the issue of non-unanimous verdicts. The ABA recently filed an amicus brief asking the Supreme Court to hear the appeal of a defendant in Louisiana who was convicted by a 10-2 verdict. Similar efforts (Herrera v. Oregon), led by Prof. Volokh, are going on with respect to a case in Oregon.

As discussed previously on this blog, Oregon and Louisiana are the only two states that allow for non-unanimous verdicts. The Supreme Court punted (Bowen v. Oregon) on this issue last term but may be inclined to take it on this time around.

The ABA is asking the Supreme Court to accept the appeal of Louisiana inmate Troy Barbour, convicted of attempted second-degree murder for shooting his employer during a quarrel. Jurors voted to convict Barbour by a 10-2 vote, according to the cert petition (PDF) filed by the Stanford Law School Supreme Court Litigation Clinic. The ABA brief(PDF) points out its revised Criminal Justice Standards no longer support nonunanimous verdicts in criminal cases, according to The BLT: The Blog of Legal Times and an ABA news release.

November 06, 2010

The U.S. Supreme Court has requested that the state of Oregon file a response in Herrera v. Oregon, a case which challenges the state's use of non-unanimous juries. While this is no guarantee that the Supreme Court will take up the case, it does demonstrate that at least one justice is interested in the issue. As some may recall, the U.S. Supreme Court punted on this issue last term when it failed take up Bowen v. Oregon.

August 13, 2010

Typically, judges declare mistrials when a jury is unable to reach unanimous agreement on conviction or acquittal.

In the event of a mistrial, the government has a choice: It can abandon the prosecution entirely or try for a retrial. For instance, in the case of former Cendant Corp. chairman Walter A. Forbes, the government in 2006 won a fraud conviction on its third try, after juries deadlocked in two previous trials.

The rule that a criminal defendant can be convicted only if all jurors vote guilty was affirmed in a 1972 Supreme Court ruling, which found the Sixth Amendment to the Constitution requires unanimity in federal courts.

That ruling didn't extend to state courts. As a result, Oregon and Louisiana allow most felony convictions on juror votes of 10-2 or 11-1. Courts in the other 48 states require unanimity for felony convictions.

The requirement puts a serious line of defense between the accused and the government, with its vast resources, said Thaddeus Hoffmeister, a law professor at the University of Dayton. "You want to stack the deck a little against the government," he said.

The difficulty in achieving a unanimous verdict also serves a purpose. "There's evidence that those juries deliberate longer, lead to discussions that might not otherwise take place," said Sherry Colb, a law professor at Cornell.

But there are limits to how long a judge will make a deadlocked jury sit before a mistrial is called. "Judges have discretion," said Ms. Colb, "but that discretion can be abused. An overly aggressive judge can turn a deliberation into a hostage situation."

If I were a criminal defense lawyer in Oregon or Louisiana, I’d use McDonald as a reason to challenge those states’ practice of allowing non-unanimous criminal juries. In Apodaca v. Oregon (1972), the Supreme Court held that the Sixth Amendment requires unanimity for a verdict — but that the Fourteenth Amendment does not carry this rule over to the states, and that even 9–3 verdicts are constitutionally permissible. The Jury Trial Clause is thus the one Bill of Rights clause that is neither completely incorporated against the states via the Fourteenth Amendment, nor completely not incorporated. (Recall that the Bill of Rights originally applied only to the federal government, and has been applied to the states only through the Fourteenth Amendment.)...to continue reading go here.

October 05, 2009

As the article below indicates, the U.S. Supreme Court has decided not to take on Bowen v. Oregon or the issue of non-unanimous verdicts this term. In 1972, the Supreme Court in Apodaca v. Oregon determined that the Constitution does not require unanimous jury verdicts in state criminal courts. Today, two states (Louisiana and Oregon) allow non-unanimous criminal verdicts (10-2).

According to the ABA President H. Thomas Wells Jr., "unanimous jury verdicts require deeper analysis of facts and increase the average deliberation time from 75 minutes (for non-unanimous verdicts) to 138 minutes. I know that if my future depended on a jury verdict, I would want the standards set as high as possible." Besides the ABA, other organizations have come out against non-unanimous verdicts and have filed amicus curiae briefs encouraging the high court to find them unconstitutional.

June 01, 2009

Here is an open letter written by the ABA President, H. Thomas Wells Jr. encouraging the Supreme Court to take up Bowen v. Oregon, which challenges Oregon's use of 10-2 verdicts.

In the 1957 film classic "Twelve Angry Men," jurors deciding the fate of a murder suspect question, cajole and nearly come to blows en route to reaching a unanimous verdict. The film offers a dramatization of what should be going on in jury rooms every day: passionate deliberation and review of the trial evidence, such that jurors reach a unanimous verdict -- one that leaves no reasonable doubt in the minds of reasonable citizens who will hear or read about the verdict ( to continue reading go here.)

In 2005, an Oregon jury convicted Scott David Bowen of eight counts of raping, sodomizing, and sexually abusing his teenage daughter. The verdict was not, however, unanimous but consisted of a majority vote of 10-2 – a breakdown that, in Oregon, suffices for conviction of crimes other than first-degree murder.

In his petition for Supreme Court review, Bowen contends that the Sixth Amendment jury trial right requires a unanimous jury for conviction of any serious criminal offense. Bowen thereby asks the Supreme Court to reconsider and overrule its 1972 decision in Apodaca v. Oregon, which upheld the split-verdict approach challenged here.

In this column, I will examine some practical implications of requiring unanimity for conviction (as all but two states currently do) rather than requiring something short of that, as Oregon and Louisiana do...

The Louisiana Supreme Court has upheld the state law allowing juries to convict felony suspects by votes of 10-to-2.

State law allows such non-unanimous verdicts in felony cases where the punishment is imprisonment at hard labor. Death penalty cases require unanimous 12-vote verdicts.

Tuesday's Supreme Court opinion overturns a 2008 decision by Judge Wilford Carter in Calcasieu Parish. The state's highest court rejected arguments that a non-unanimous verdict violates a defendant's rights, saying that the U.S. Supreme Court is firmly on the record supporting the constitutionality of such verdicts.

Carter had ruled that suspects in two second-degree murder cases were entitled to unanimous verdicts, even though second-degree murder does not carry a death sentence.

House Republicans are trying again to revamp Georgia's capital punishment laws to allow the death penalty without a unanimous jury decision.

House leaders suddenly pulled a measure that would give prosecutors more leeway to seek sentences of life in prison without parole from the floor Tuesday, saying the proposal needed some technical changes.

The measure's author, state Sen. Preston Smith, said he was told that House leaders are trying to amend it to allow death sentences when jurors vote 9 to 3 in favor of death. State law now requires a unanimous jury to return a death sentence.